As
a condition of federal financial assistance, the Education of the
Handicapped Act requires States to ensure a "free appropriate
public education" for all disabled children within their jurisdictions.
In aid of this goal, the Act establishes a comprehensive system of
procedural safeguards designed to ensure parental participation in
decisions concerning the education of their disabled children and
to provide administrative and judicial review of any decisions with
which those parents disagree. Among these safeguards is the so-called
"stay-put" provision, which directs that a disabled child
"shall remain in [his or her] then current educational placement"
pending completion of any review proceedings, unless the parents and
state or local educational agencies otherwise agree. 20 U.S.C. 1415(e)(3).
Today we must decide whether, in the face of this statutory proscription,
state or local school authorities may nevertheless unilaterally exclude
disabled children from the classroom for dangerous or disruptive conduct
growing out of their disabilities. In addition, we are called upon
to decide whether a district court may, in the exercise of its equitable
powers, order a State to provide educational services directly to
a disabled child when the local agency fails to do so.

I.

In
the Education of the Handicapped Act (EHA or the Act), 84 Stat. 175,
as amended, 20 U.S.C. 1400 et seq., Congress sought "to
assure that all handicapped children have available to them . . .
a free appropriate public education which emphasizes special education
and related services designed to meet their unique needs, [and] to
assure that the rights of handicapped children and their parents or
guardians are protected." 1400(c). When the law was passed in
1975, Congress had before it ample evidence that such legislative
assurances were sorely needed: 21 years after this Court declared
education to be "perhaps the most important function of state
and local governments," Brown v. Board of Education, 347 U.S.
483, 493 (1954), Congressional studies revealed that better than half
of the Nation's eight million disabled children were not receiving
appropriate educational services. 1400(b)(3). Indeed, one out of every
eight of these children was excluded from the public school system
altogether, 1400(b)(4); many others were simply "warehoused"
in special classes or were neglectfully shepherded through the system
until they were old enough to drop out. See H. R. Rep. No. 94-332,
p. 2 (1975). Among the most poorly served of disabled students were
emotionally disturbed children: Congressional statistics revealed
that for the school year immediately preceding passage of the Act,
the educational needs of 82 percent of all children with emotional
disabilities went unmet. See S. Rep. No. 94-168, p. 8 (1975) (hereinafter
S. Rep.).

Although
these educational failings resulted in part from funding constraints,
Congress recognized that the problem reflected more than a lack of
financial resources at the state and local levels. Two federal-court
decisions, which the Senate Report characterized as "landmark,"
see id., at 6, demonstrated that many disabled children were excluded
pursuant to state statutes or local rules and policies, typically
without any consultation with, or even notice to, their parents. See
Mills v. Board of Education of District of Columbia, 348 F.
Supp. 866 (DC 1972); Pennsylvania Assn. for Retarded Children v.
Pennsylvania, 334 F. Supp. 1257 (ED Pa. 1971), and 343 F. Supp.
279 (1972) (PARC). Indeed, by the time of the EHA's enactment, parents
had brought legal challenges to similar exclusionary practices in
27 other states. See S. Rep., at 6.

In
responding to these problems, Congress did not content itself with
passage of a simple funding statute. Rather, the EHA confers upon
disabled students an enforceable substantive right to public education
in participating States, see Board
of Education of Hendrick Hudson Central School Dist. v. Rowley,
458 U.S. 176 (1982),1 and conditions federal financial assistance
upon a State's compliance with the substantive and procedural goals
of the Act. Accordingly, States seeking to qualify for federal funds
must develop policies assuring all disabled children the "right
to a free appropriate public education," and must file with the
Secretary of Education formal plans mapping out in detail the programs,
procedures and timetables under which they will effectuate these policies.
20 U.S.C. 1412(1), 1413(a). Such plans must assure that, "to
the maximum extent appropriate," States will "mainstream"
disabled children, i.e., that they will educate them with children
who are not disabled, and that they will segregate or otherwise remove
such children from the regular classroom setting "only when the
nature or severity of the handicap is such that education in regular
classes . . . cannot be achieved satisfactorily." 1412(5).

The
primary vehicle for implementing these congressional goals is the
"individualized educational program" (IEP), which the EHA
mandates for each disabled child. Prepared at meetings between a representative
of the local school district, the child's teacher, the parents or
guardians, and, whenever appropriate, the disabled child, the IEP
sets out the child's present educational performance, establishes
annual and short-term objectives for improvements in that performance,
and describes the specially designed instruction and services that
will enable the child to meet those objectives. 1401(19). The IEP
must be reviewed and, where necessary, revised at least once a year
in order to ensure that local agencies tailor the statutorily required
"free appropriate public education" to each child's unique
needs. 1414(a)(5).

Envisioning
the IEP as the centerpiece of the statute's education delivery system
for disabled children, and aware that schools had all too often denied
such children appropriate educations without in any way consulting
their parents, Congress repeatedly emphasized throughout the Act the
importance and indeed the necessity of parental participation in both
the development of the IEP and any subsequent assessments of its effectiveness.
See 1400(c), 1401(19), 1412(7), 1415(b)(1)(A), (C), (D), (E), and
1415(b)(2). Accordingly, the Act establishes various procedural safeguards
that guarantee parents both an opportunity for meaningful input into
all decisions affecting their child's education and the right to seek
review of any decisions they think inappropriate. These safeguards
include the right to examine all relevant records pertaining to the
identification, evaluation and educational placement of their child;
prior written notice whenever the responsible educational agency proposes
(or refuses) to change the child's placement or program; an opportunity
to present complaints concerning any aspect of the local agency's
provision of a free appropriate public education; and an opportunity
for "an impartial due process hearing" with respect to any
such complaints. 1415(b)(1), (2).

At
the conclusion of any such hearing, both the parents and the local
educational agency may seek further administrative review and, where
that proves unsatisfactory, may file a civil action in any state or
federal court. 1415(c), (e)(2). In addition to reviewing the administrative
record, courts are empowered to take additional evidence at the request
of either party and to "grant such relief as [they] determine[]
is appropriate." 1415(e)(2). The "stay-put" provision
at issue in this case governs the placement of a child while these
often lengthy review procedures run their course. It directs that:

"During
the pendency of any proceedings conducted pursuant to [1415], unless
the State or local educational agency and the parents or guardian
otherwise agree, the child shall remain in the then current educational
placement of such child. . . ." 1415(e)(3).

The
present dispute grows out of the efforts of certain officials of the
San Francisco Unified School District (SFUSD) to expel two emotionally
disturbed children from school indefinitely for violent and disruptive
conduct related to their disabilities. In November 1980, respondent
John Doe assaulted another student at the Louise Lombard School, a
developmental center for disabled children. Doe's April 1980 IEP identified
him as a socially and physically awkward 17 year old who experienced
considerable difficulty controlling his impulses and anger. Among
the goals set out in his IEP was "[i]mprovement in [his] ability
to relate to [his] peers [and to] cope with frustrating situations
without resorting to aggressive acts." App. 17. Frustrating situations,
however, were an unfortunately prominent feature of Doe's school career:
physical abnormalities, speech difficulties, and poor grooming habits
had made him the target of teasing and ridicule as early as the first
grade, id., at 23; his 1980 IEP reflected his continuing difficulties
with peers, noting that his social skills had deteriorated and that
he could tolerate only minor frustration before exploding. Id.,
at 15-16.

On
November 6, 1980, Doe responded to the taunts of a fellow student
in precisely the explosive manner anticipated by his IEP: he choked
the student with sufficient force to leave abrasions on the child's
neck, and kicked out a school window while being escorted to the principal's
office afterwards. Id., at 208. Doe admitted his misconduct and the
school subsequently suspended him for five days. Thereafter, his principal
referred the matter to the SFUSD Student Placement Committee (SPC
or Committee) with the recommendation that Doe be expelled. On the
day the suspension was to end, the SPC notified Doe's mother that
it was proposing to exclude her child permanently from SFUSD and was
therefore extending his suspension until such time as the expulsion
proceedings were completed.2 The Committee further advised her that
she was entitled to attend the November 25 hearing at which it planned
to discuss the proposed expulsion.

After
unsuccessfully protesting these actions by letter, Doe brought this
suit against a host of local school officials and the state superintendent
of public education. Alleging that the suspension and proposed expulsion
violated the EHA, he sought a temporary restraining order cancelling
the SPC hearing and requiring school officials to convene an IEP meeting.
The District Judge granted the requested injunctive relief and further
ordered defendants to provide home tutoring for Doe on an interim
basis; shortly thereafter, she issued a preliminary injunction directing
defendants to return Doe to his then current educational placement
at Louise Lombard School pending completion of the IEP review process.
Doe re-entered school on December 15, 5 1/2 weeks, and 24 school days,
after his initial suspension.

Respondent
Jack Smith was identified as an emotionally disturbed child by the
time he entered the second grade in 1976. School records prepared
that year indicated that he was unable "to control verbal or
physical outburst[s]" and exhibited a "[s]evere disturbance
in relationships with peers and adults." Id., at 123. Further
evaluations subsequently revealed that he had been physically and
emotionally abused as an infant and young child and that, despite
above average intelligence, he experienced academic and social difficulties
as a result of extreme hyperactivity and low self-esteem. Id., at
136, 139, 155, 176. Of particular concern was Smith's propensity for
verbal hostility; one evaluator noted that the child reacted to stress
by "attempt[ing] to cover his feelings of low self worth through
aggressive behavior
[,] . . . primarily verbal provocations." Id., at 136.

Based
on these evaluations, SFUSD placed Smith in a learning center for
emotionally disturbed children. His grandparents, however, believed
that his needs would be better served in the public school setting
and, in September 1979, the school district acceded to their requests
and enrolled him at A. P. Giannini Middle School. His February 1980
IEP recommended placement in a Learning Disability Group, stressing
the need for close supervision and a highly structured environment.
Id., at 111. Like earlier evaluations, the February 1980 IEP
noted that Smith was easily distracted, impulsive, and anxious; it
therefore proposed a half-day schedule and suggested that the placement
be undertaken on a trial basis. Id., at 112, 115.

At
the beginning of the next school year, Smith was assigned to a full-day
program; almost immediately thereafter he began misbehaving. School
officials met twice with his grandparents in October 1980 to discuss
returning him to a half-day program; although the grandparents agreed
to the reduction, they apparently were never apprised of their right
to challenge the decision through EHA procedures. The school officials
also warned them that if the child continued his disruptive behavior--which
included stealing, extorting money from fellow students, and making
sexual comments to female classmates--they would seek to expel him.
On November 14, they made good on this threat, suspending Smith for
five days after he made further lewd comments. His principal referred
the matter to the SPC, which recommended exclusion from SFUSD. As
it did in John Doe's case, the Committee scheduled a hearing and extended
the suspension indefinitely pending a final disposition in the matter.
On November 28, Smith's counsel protested these actions on grounds
essentially identical to those raised by Doe, and the SPC agreed to
cancel the hearing and to return Smith to a half-day program at A.
P. Giannini or to provide home tutoring. Smith's grandparents chose
the latter option and the school began home instruction on December
10; on January 6, 1981, an IEP team convened to discuss alternative
placements.

After
learning of Doe's action, Smith sought and obtained leave to intervene
in the suit. The District Court subsequently entered summary judgment
in favor of respondents on their EHA claims and issued a permanent
injunction. In a series of decisions, the District Judge found that
the proposed expulsions and indefinite suspensions of respondents
for conduct attributable to their disabilities deprived them of their
congressionally mandated right to a free appropriate public education,
as well as their right to have that education provided in accordance
with the procedures set out in the EHA. The District Judge therefore
permanently enjoined the school district from taking any disciplinary
action other than a two- or five-day suspension against any disabled
child for disability-related misconduct, or from effecting any other
change in the educational placement of any such child without parental
consent pending completion of any EHA proceedings. In addition, the
judge barred the State from authorizing unilateral placement changes
and directed it to establish an EHA compliance-monitoring system or,
alternatively, to enact guidelines governing local school responses
to disability-related misconduct. Finally, the judge ordered the State
to provide services directly to disabled children when, in any individual
case, the State determined that the local educational agency was unable
or unwilling to do so.

On
appeal, the Court of Appeals for the Ninth Circuit affirmed the orders
with slight modifications. Doe v. Maher, 793 F.2d 1470 (1986).
Agreeing with the District Court that an indefinite suspension in
aid of expulsion constitutes a prohibited "change in placement"
under 1415(e)(3), the Court of Appeals held that the stay-put provision
admitted of no "dangerousness" exception and that the statute
therefore rendered invalid those provisions of the California Education
Code permitting the indefinite suspension or expulsion of disabled
children for misconduct arising out of their disabilities. The court
concluded, however, that fixed suspensions of up to 30 school days
did not fall within the reach of 1415(e)(3), and therefore upheld
recent amendments to the state education code authorizing such suspensions.3
Lastly, the court affirmed that portion of the injunction requiring
the State to provide services directly to a disabled child when the
local educational agency fails to do so.

Petitioner
Bill Honig, California Superintendent of Public Instruction,4 sought
review in this Court, claiming that the Court of Appeals' construction
of the stay-put provision conflicted with that of several other courts
of appeals which had recognized a dangerousness exception, compare
Doe v. Maher, 793 F. 2d 1470 (1986) (case below), with Jackson
v. Franklin County School Board, 765 F. 2d 535, 538 (CA5 1985);
Victoria L. v. District School Bd. of Lee County, Fla., 741
F.2d 369, 374 (CA 11 1984); S-1 v. Turlington, 635 F.2d 342,
348, n. 9 (CA5), cert. denied, 454 U.S. 1030 (1981), and that the
direct services ruling placed an intolerable burden on the State.
We granted certiorari to resolve these questions, 479 U.S. ___ (1987),
and now affirm.

II

At
the outset, we address the suggestion, raised for the first time during
oral argument, that this case is moot.[5] Under Article III of the
Constitution this Court may only adjudicate actual, ongoing controversies.
Nebraska Press Assn v. Stuart, 427 U.S. 539, 546 (1976); Preiser v.
Newkirk, 422 U.S. 395, 401 (1975). That the dispute between the parties
was very much alive when suit was filed, or at the time the Court
of Appeals rendered its judgment, cannot substitute for the actual
case or controversy that an exercise of this Court's jurisdiction
requires. Steffel v. Thompson, 415 U.S. 452, 459, n. 10 (1974);
Roe v. Wade, 410 U.S. 113, 125 (1973). In the present case,
we have jurisdiction if there is a reasonable likelihood that respondents
will again suffer the deprivation of EHA-mandated rights that gave
rise to this suit. We believe that, at least with respect to respondent
Smith, such a possibility does in fact exist and that the case therefore
remains justiciable.

Respondent
John Doe is now 24 years old and, accordingly, is no longer entitled
to the protections and benefits of the EHA, which limits eligibility
to disabled children between the ages of three and 21. See 20 U.S.C.
Sec. 1412(2)(B). It is clear, therefore, that whatever rights to state
educational services he may yet have as a ward of the State, see Tr.
of Oral Arg. 23, 26, the Act would not govern the State's provision
of those services, and thus the case is moot as to him. Respondent
Jack Smith, however, is currently 20 and has not yet completed high
school. Although at present he is not faced with any proposed expulsion
or suspension proceedings, and indeed no longer even resides within
the SFUSD, he remains a resident of California and is entitled to
a "free appropriate public education" within that State.
His claims under the EHA, therefore, are not moot if the conduct he
originally complained of is "'capable of repetition, yet evading
review.'" Murphy v. Hunt, 455 U.S. 478, 482 (1982). Given
Smith's continued eligibility for educational services under the EHA,6
the nature of his disability, and petitioner's insistence that all
local school districts retain residual authority to exclude disabled
children for dangerous conduct, we have little difficulty concluding
that there is a "reasonable expectation," ibid., that Smith
would once again be subjected to a unilteral "change in placement"
for conduct growing out of his disabilities were it not for the state-wide
injunctive relief issued below.

Our
cases reveal that, for purposes of assessing the likelihood that state
authorities will re-inflict a given injury, we generally have been
unwilling to assume that the party seeking relief will repeat the
type of misconduct that would once again place him or her at risk
of that injury. See Los Angeles v. Lyons, 461 U.S. 95, 105-106
(1983) (no threat that party seeking injunction barring police use
of chokeholds would be stopped again for traffic violation or other
offense, or would resist arrest if stopped); Hunt v. Murphy, supra,
at 484 (no reason to believe that party challenging denial of pre-trial
bail "will once again be in a position to demand bail");
O'Shea v. Littleton, 414 U.S. 488, 497 (1974) (unlikely that
parties challenging discriminatory bond-setting, sentencing, and jury-fee
practices would again violate valid criminal laws).

No
such reluctance, however, is warranted here. It is respondent Smith's
very inability to conform his conduct to socially acceptable norms
that renders him "handicapped" within the meaning of the
EHA. See 20 U.S.C. 1401(1); 34 CFR 300.5(b)(8) (1987). As noted above,
the record is replete with evidence that Smith is unable to govern
his aggressive, impulsive behavior--indeed, his notice of suspension
acknowledged that "Jack's actions seem beyond his control."
App. 152. In the absence of any suggestion that respondent has overcome
his earlier difficulties, it is certainly reasonable to expect, based
on his prior history of behavioral problems, that he will again engage
in classroom misconduct. Nor is it reasonable to suppose that Smith's
future educational placement will so perfectly suit his emotional
and academic needs that further disruptions on his part are improbable.
Although Justice Scalia suggests in his dissent, post, at 3, that
school officials are unlikely to place Smith in a setting where they
cannot control his misbehavior, any efforts to ensure such total control
must be tempered by the school system's statutory obligations to provide
respondent with a free appropriate public education in "the least
restrictive environment," 34 CFR 300.552(d) (1987); to educate
him, "to the maximum extent appropriate," with children
who are not disabled, 20 U.S.C. 1412(5); and to consult with his parents
or guardians, and presumably with respondent himself, before choosing
a placement. 1401(19), 1415(b). Indeed, it is only by ignoring these
mandates, as well as Congress' unquestioned desire to wrest from school
officials their former unilateral authority to determine the placement
of emotionally disturbed children, see infra, at 15-16, that
the dissent can so readily assume that respondent's future placement
will satisfactorily prevent any further dangerous conduct on his part.
Overarching these statutory obligations, moreover, is the inescapable
fact that the preparation of an IEP, like any other effort at predicting
human behavior, is an inexact science at best. Given the unique circumstances
and context of this case, therefore, we think it reasonable to expect
that respondent will again engage in the type of misconduct that precipitated
this suit.

We
think it equally probable that, should he do so, respondent will again
be subjected to the same unilateral school action for which he initially
sought relief. In this regard, it matters not that Smith no longer
resides within the SFUSD. While the actions of SFUSD officials first
gave rise to this litigation, the District Judge expressly found that
the lack of a state policy governing local school responses to disability-related
misconduct had led to, and would continue to result in, EHA violations,
and she therefore enjoined the state defendant from authorizing, among
other things, unilateral placement changes. App. 247-248. She of course
also issued injunctions directed at the local defendants, but they
did not seek review of those orders in this Court. Only petitioner,
the State Superintendent of Public Instruction, has invoked our jurisdiction,
and he now urges us to hold that local school districts retain unilateral
authority under the EHA to suspend or otherwise remove disabled children
for dangerous conduct. Given these representations, we have every
reason to believe that were it not for the injunction barring petitioner
from authorizing such unilateral action, respondent would be faced
with a real and substantial threat of such action in any California
school district in which he enrolled. Cf. Los Angeles v. Lyons,
supra, at 106 (respondent lacked standing to seek injunctive relief
because he could not plausibly allege that police officers choked
all persons whom they stopped, or that the City "AUTHORIZED police
officers to act in such manner" (emphasis added)). Certainly,
if the SFUSD's past practice of unilateral exclusions was at odds
with state policy and the practice of local school districts generally,
petitioner would not now stand before us seeking to defend the right
of all local school districts to engage in such aberrant behavior.[7]

We
have previously noted that administrative and judicial review under
the EHA is often "ponderous," Burlington School Committee
v. Massachusetts Dept. of Education, 471 U.S. 359, 370 (1985),
and this case, which has taken seven years to reach us, amply confirms
that observation. For obvious reasons, the misconduct of an emotionally
disturbed or otherwise disabled child who has not yet reached adolescence
typically will not pose such a serious threat to the well-being of
other students that school officials can only ensure classroom safety
by excluding the child. Yet, the adolescent student improperly disciplined
for misconduct that does pose such a threat will often be finished
with school or otherwise ineligible for EHA protections by the time
review can be had in this Court. Because we believe that respondent
Smith has demonstrated both "a sufficient likelihood that he
we will again be wronged in a similar way," Los Angeles v.
Lyons, 461 U.S., at 111, and that any resulting claim he may have
for relief will surely evade our review, we turn to the merits of
his case.

III

The
language of 1415(e)(3) is unequivocal. It states plainly that during
the pendency of any proceedings initiated under the Act, unless the
state or local educational agency and the parents or guardian of a
disabled child otherwise agree, "the child SHALL remain in the
then current educational placement." 1415(e)(3) (emphasis added).
Faced with this clear directive, petitioner asks us to read a "dangerousness"
exception into the stay-put provision on the basis of either of two
essentially inconsistent assumptions: first, that Congress thought
the residual authority of school officials to exclude dangerous students
from the classroom too obvious for comment; or second, that Congress
inadvertently failed to provide such authority and this Court must
therefore remedy the oversight. Because we cannot accept either premise,
we decline petitioner's invitation to re-write the statute.

Petitioner's
arguments proceed, he suggests, from a simple, common-sense proposition:
Congress could not have intended the stay-put provision to be read
literally, for such a construction leads to the clearly unintended,
and untenable, result that school districts must return violent or
dangerous students to school while the often lengthy EHA proceedings
run their course. We think it clear, however, that Congress very much
meant to strip schools of the unilateral authority they had traditionally
employed to exclude disabled students, particularly emotionally disturbed
students, from school. In so doing, Congress did not leave school
administrators powerless to deal with dangerous students; it did,
however, deny school officials their former right to "self-help,"
and directed that in the future the removal of disabled students could
be accomplished only with the permission of the parents or, as a last
resort, the courts.

As
noted above, Congress passed the EHA after finding that school systems
across the country had excluded one out of every eight disabled children
from classes. In drafting the law, Congress was largely guided by
the recent decisions in Mills v. Board of Education of District
of Columbia, 348 F. Supp. 866 (1972), and PARC, 343 F.
Supp. 279 (1972), both of which involved the exclusion of hard-to-handle
disabled students. Mills in particular demonstrated the extent
to which schools used disciplinary measures to bar children from the
classroom. There, school officials had labeled four of the seven minor
plaintiffs "behavioral problems," and had excluded them
from classes without providing any alternative education to them or
any notice to their parents. 348 F. Supp., at 869-870. After finding
that this practice was not limited to the named plaintiffs but affected
in one way or another an estimated class of 12,000 to 18,000 disabled
students, id., at 868-869, 875, the District Court enjoined future
exclusions, suspensions, or expulsions "on grounds of discipline."
Id., at 880.

Congress
attacked such exclusionary practices in a variety of ways. It required
participating States to educate all disabled children, regardless
of the severity of their disabilities, 20 U.S.C. 1412(2)(C), and included
within the definition of "handicapped" those children with
serious emotional disturbances. 1401(1). It further provided for meaningful
parental participation in all aspects of a child's educational placement,
and barred schools, through the stay-put provision, from changing
that placement over the parent's objection until all review proceedings
were completed. Recognizing that those proceedings might prove long
and tedious, the Act's drafters did not intend 1415(e)(3) to operate
inflexibly, see 121 Cong. Rec. 37412 (1975) (remarks of Sen.
Stafford), and they therefore allowed for interim placements where
parents and school officials are able to agree on one. Conspicuously
absent from 1415(e)(3), however, is any emergency exception for dangerous
students. This absence is all the more telling in light of the injunctive
decree issued in PARC, which permitted school officials unilaterally
to remove students in "'extraordinary circumstances.'" 343
F. Supp., at 301. Given the lack of any similar exception in Mills,
and the close attention Congress devoted to these "landmark"
decisions, see S. Rep., at 6, we can only conclude that the omission
was intentional; we are therefore not at liberty to engraft onto the
statute an exception Congress chose not to create.

Our
conclusion that 1415(e)(3) means what it says does not leave educators
hamstrung. The Department of Education has observed that, "[w]hile
the [child's] placement may not be changed [during any complaint proceeding],
this does not preclude the agency from using its normal procedures
for dealing with children who are endangering themselves or others."
Comment following 34 CFR 300.513 (1987). Such procedures may include
the use of study carrels, time-outs, detention, or the restriction
of privileges. More drastically, where a student poses an immediate
threat to the safety of others, officials may temporarily suspend
him or her for up to 10 school days.[8] This authority, which respondent
in no way disputes, not only ensures that school administrators can
protect the safety of others by promptly removing the most dangerous
of students, it also provides a "cooling down" period during
which officials can initiate IEP review and seek to persuade the child's
parents to agree to an interim placement. And in those cases in which
the parents of a truly dangerous child adamantly refuse to permit
any change in placement, the 10-day respite gives school officials
an opportunity to invoke the aid of the courts under 1415(e)(2), which
empowers courts to grant any appropriate relief.

Petitioner
contends, however, that the availability of judicial relief is more
illusory than real, because a party seeking review under 1415(e)(2)
must exhaust time-consuming administrative remedies, and because under
the Court of Appeals' construction of 1415(e)(3), courts are as bound
by the stay-put provision's "automatic injunction," 793
F.2d, at 1486, as are schools.[9] It is true that judicial review
is normally not available under 1415(e)(2) until all administrative
proceedings are completed, but as we have previously noted, parents
may by-pass the administrative process where exhaustion would be futile
or inadequate. See Smith v. Robinson, 468 U.S. 992, 1014, n.
17 (1984) (citing cases); see also 121 Cong. Rec. 37416 (1975)
(remarks of Sen. Williams) ("[E]xhaustion . . . should not be
required . . . in cases where such exhaustion would be futile either
as a legal or practical matter"). While may of the EHA's procedural
safeguards protect the rights of parents and children, schools can
and do seek redress through the administrative review process, and
we have no reason to believe that Congress meant to require schools
alone to exhaust in all cases, no matter how exigent the circumstances.
The burden in such cases, of course, rests with the school to demonstrate
the futility or inadequacy of administrative review, but nothing in
1415(e)(2) suggests that schools are completely barred from attempting
to make such a showing. Nor do we think that 1415(e)(3) operates to
limit the equitable powers of district courts such that they cannot,
in appropriate cases, temporarily enjoin a dangerous disabled child
from attending school.

As the EHA's legislative history makes clear, one of the evils Congress
sought to remedy was the unilateral exclusion of disabled children
by SCHOOLS, not courts, and one of the purposes of 1415(e)(3), therefore,
was "to prevent SCHOOL officials from removing a child from the
regular public school classroom over the parents' objection pending
completion of the review proceedings." Burlington School Committee
v. Massachusetts Dept. of Education, 471 U.S., at 373 (emphasis
added). The stay-put provision in no way purports to limit or pre-empt
the authority conferred on courts by 1415(e)(2), see Doe v. Brookline
School Committee, 722 F.2d 910, 917 (CA1 1983); indeed, it says
nothing whatever about judicial power.

In
short, then, we believe that school officials are entitled to seek
injunctive relief under 1415(e)(2) in appropriate cases. In any such
action, 1415(e)(3) effectively creates a presumption in favor of the
child's current educational placement which school officials can overcome
only by showing that maintaining the child in his or her current placement
is substantially likely to result in injury either to himself or herself,
or to others. In the present case, we are satisfied that the District
Court, in enjoining the state and local defendants from indefinitely
suspending respondent or otherwise unilaterally altering his then
current placement, properly balanced respondent's interest in receiving
a free appropriate public education in accordance with the procedures
and requirements of the EHA against the interests of the state and
local school officials in maintaining a safe learning environment
for all their students.[10]

IV

We
believe the courts below properly construed and applied 1415(e)(3),
except insofar as the Court of Appeals held that a suspension in excess
of 10 school days does not constitute a "change in placement."[11]
We therefore affirm the Court of Appeals' judgment on this issue as
modified herein. Because we are equally divided on the question whether
a court may order a State to provide services directly to a disabled
child where the local agency has failed to do so, we affirm the Court
of Appeals' judgment on this issue as well.

Affirmed.

[1]
Congress' earlier efforts to ensure that disabled students received
adequate public education had failed in part because the measures
it adopted were largely hortatory. In the 1966 amendments to the Elementary
and Secondary Education Act of 1965, Congress established a grant
program "for the purpose of assisting the States in the initiation,
expansion, and improvement of programs and projects . . . for the
education of handicapped children." Pub. L. 89-750, 161, 80 Stat.
1204. It repealed that program four years later and replaced it with
the original version of the Education of the Handicapped Act, Pub.
L. 91-230, 84 Stat. 175, Part B of which contained a similar grant
program. Neither statute, however, provided specific guidance as to
how States were to use the funds, nor did they condition the availability
of the grants on compliance with any procedural or substantive safeguards.
In amending the EHA to its present form, Congress rejected its earlier
policy of "merely establish[ing] an unenforceable goal requiring
all children to be in school." 121 Cong. Rec. 37417 (1975) (remarks
of Sen. Schweiker). Today, all 50 states and the District of Columbia
receive funding assistance under the EHA. U.S. Dept. of Education,
Ninth Annual Report to Congress on Implementation of Education of
the Handicapped Act (1987).

[2]
California law at the time empowered school principals to suspend
students for no more than five consecutive school days, Cal. Educ.
Code Ann. 48903(a) (West 1978), but permitted school districts seeking
to expel a suspended student to "extend the suspension until
such time as [expulsion proceedings were completed]; provided, that
[it] has determined that the presence of the pupil at the school or
in an alternative school placement would cause a danger to persons
or property or a threat of disrupting the instructional process."
48903(h). The State subsequently amended the law to permit school
districts to impose longer initial periods of suspension. See n. 3,
infra.

[3]
In 1983, the State amended its Education Code to permit school districts
to impose initial suspensions of 20, and in certain circumstances,
30 school days. Cal. Educ. Code Ann. 48912(a), 48903 (West Supp. 1988).
The legislature did not alter the indefinite suspension authority
which the SPC exercised in this case, but simply incorporated the
earlier provision into a new section. See 48911(g).

[4]
At the time respondent Doe initiated this suit, Wilson Riles was the
California Superintendent of Public Instruction. Petitioner Honig
succeeded him in office.

[5]
We note that both petitioner and respondents believe that this case
presents a live controversy. See Tr. of Oral Arg. 6, 27-31. Only the
United States, appearing as amicus curiae, urges that the case is
presently nonjusticiable. Id., at 21.

[6]
Notwithstanding respondent's undisputed right to a free appropriate
public education in California, Justice Scalia argues in dissent that
there is no "demonstrated probability" that Smith will actually
avail himself of that right because his counsel was unable to state
affirmatively during oral argument that her client would seek to re-enter
the state school system. See post, at 2. We believe the dissent overstates
the stringency of the "capable of repetition" test. Although
Justice Scalia equates "reasonable expectation" with "demonstrated
probability," the very case he cites for this proposition described
these standards in the distinctive, see Murphy v. Hunt, 455
U.S., at 482 ("[T]here must be a 'reasonable expectation' OR
a 'demonstrated probability' that the same controversy will recur"
(emphasis added)), and in numerous cases decided both before and since
Hunt we have found controversies capable of repetition based on expectations
that, while reasonable, were hardly demonstrably probable. See e.g.,
Burlington Northern R. Co. v. Maintenance of Way Employees,
481 U.S. ____, ____, n. 4 (1987) (parties "reasonably likely"
to find themselves in future disputes over collective bargaining agreement);
California Coastal Comm'n v. Granite Rock Co., 480 U.S. ____,
____ (1987) (O'Connor, J.) ("likely" that respondent would
again submit mining plans that would trigger contested state permit
requirement); Press-Enterprise Co. v. Superior Court of Cal., Riverside
County, 478 U.S. 1, 6 (1986) ("It can reasonably be assumed"
that newspaper publisher will be subjected to similar closure order
in the future); Globe Newspaper Co. v. Superior Court of Norfolk
County, 457 U.S. 596, 603 (1982) (same); United States Parole
Comm'n v. Geraghty, 445 U.S. 388, 398 (1980) (case not moot where
litigant "faces some likelihood of becoming involved in same
controversy in the future") (dicta). Our concern in these cases,
as in all others involving potentially moot claims, was whether the
controversy was capable of repetition and not, as the dissent seems
to insist, whether the claimant had demonstrated that a recurrence
of the dispute was more probable than not. Regardless, then, of whether
respondent has established with mathematical precision the likelihood
that he will enroll in public school during the next two years, we
think there is at the very least a reasonable expectation that he
will exercise his rights under the EHA. In this regard, we believe
respondent's actions over the course of the last seven years speak
louder than his counsel's momentary equivocation during oral argument.
Since 1980, he has sought to vindicate his right to an appropriate
public education that is not only free of charge, but free from the
threat that school officials will unilaterally change his placement
or exclude him from class altogether. As a disabled young man, he
has as at least as great a need of a high school education and diploma
as any of his peers, and his counsel advises us that he is awaiting
the outcome of this case to decide whether to pursue his degree. Tr.
Oral Arg. 23-24. Under these circumstances, we think it not only counterintuitive
but unreasonable to assume that respondent will forgo the exercise
of a right that he has for so long sought to defend. Certainly we
have as much reason to expect that respondent will re-enter the California
school system as we had to assume that Jane Roe would again both have
an unwanted pregnancy and wish to exercise her right to an abortion.
See Roe v. Wade, 410 U.S. 113, 125 (1973).

[7]
Petitioner concedes that the school district "made a number of
procedural mistakes in its eagerness to protect other students from
Doe and Smith." Reply Brief for Petitioner 6. According to petitioner,
however, unilaterally excluding respondents from school was not among
them; indeed, petitioner insists that the SFUSD acted properly in
removing respondents and urges that the stay-put provision "should
not be interpreted to require a school district to maintain such dangerous
children with other children." Id., at 6-7.

[8]
The Department of Education has adopted the position first espoused
in 1980 by its Office of Civil Rights that a suspension of up to 10
school days does not amount to a "change in placement" prohibited
by 1415(e)(3). U.S. Dept. of Education, Office of Special Education
Programs, Policy Letter (Feb. 26, 1987), Ed. for Handicapped L.
Rep. 211:437 (1987). The EHA nowhere defines the phrase "change
in placement," nor does the statute's structure or legislative
history provide any guidance as to how the term applies to fixed suspensions.
Given this ambiguity, we defer to the construction adopted by the
agency charged with monitoring and enforcing the statute. See INS
v. Cardoza-Fonseca, 480 U.S. ____, ____ (1987). Moreover, the
agency's position comports fully with the purposes of the statute:
Congress sought to prevent schools from permanently and unilaterally
excluding disabled children by means of indefinite suspensions and
expulsions; the power to impose fixed suspensions of short duration
does not carry the potential for total exclusion that Congress found
so objectionable. Indeed, despite its broad injunction, the District
Court in Mills v. Board of Education of District of Columbia,
348 F. Supp. 866 (DC 1972), recognized that school officials could
suspend disabled children on a short-term, temporary basis. See id,
at 880. Cf. Goss v. Lopez, 419 U.S. 565, 574-576, (1975) (suspension
of 10 school days or more works a sufficient deprivation of property
and liberty interests to trigger the protections of the Due Process
Clause). Because we believe the agency correctly determined that a
suspension in excess of 10 days does constitute a prohibited "change
in placement," we conclude that the Court of Appeals erred to
the extent it approved suspensions of 20 and 30 days' duration.

[9]
Petitioner also notes that in California, schools may not suspend
any given student for more than a total of 20, and in certain special
circumstances 30, school days in a single year, see Cal. Educ. Code
Ann. 48903 (West Supp. 1988); he argues, therefore, that a school
district may not have the option of imposing a 10-day suspension when
dealing with an obstreperous child whose previous suspensions for
the year total 18 or 19 days. The fact remains, however, that state
law does not define the scope of 1415(e)(3). There may be cases in
which a suspension that is otherwise valid under the stay-put provision
would violate local law. The effect of such a violation, however,
is a question of state law upon which we express no view.

[10]
We therefore reject the United States' contention that the District
Judge abused her discretion in enjoining the local school officials
from indefinitely suspending respondent pending completion of the
expulsion proceedings. Contrary to the Government's suggestion, the
District Judge did not view herself bound to enjoin any and all violations
of the stay-put provision, but rather, consistent with the analysis
we set out above, weighed the relative harms to the parties and found
that the balance tipped decidedly in favor of respondent. App. 222-223.
We of course do not sit to review the factual determinations underlying
that conclusion. We do note, however, that in balancing the parties'
respective interests, the District Judge gave proper consideration
to respondent's rights under the EHA. While the Government complains
that the District Court indulged an improper presumption of irreparable
harm to respondent, we do not believe that school officials can escape
the presumptive effect of the stay-put provision simply by violating
it and forcing parents to petition for relief. In any suit brought
by parents seeking injunctive relief for a violation of 1415(e)(3),
the burden rests with the school district to demonstrate that the
educational status quo must be altered.

[11]
See n. 8, supra.

_________________________

Chief
Justice Rehnquist, concurring.

I
write separately on the mootness issue in this case to explain why
I have joined Part II of the Court's opinion, and why I think reconsideration
of our mootness jurisprudence may be in order when dealing with cases
decided by this Court.

The
present rule in federal cases is that an actual controversy must exist
at all stages of appellate review, not merely at the time the complaint
is filed. This doctrine was clearly articulated in United States
v. Munsingwear, 340 U.S. 36 (1950), in which Justice Douglas noted
that "[t]he established practice of the Court in dealing with
a civil case from a court in the federal system which has become moot
while on its way here or pending our decision on the merits is to
reverse or vacate the judgment below and remand with a direction to
dismiss." Id., at 39. The rule has been followed fairly consistently
over the last 30 years. See, e.g., Preiser v. Newkirk, 422
U.S. 395 (1975); SEC v. Medical Committee for Human Rights,
404 U.S. 403 (1972).

All
agree that this case was "very much alive," ante, at 10,
when the action was filed in the District Court, and very probably
when the Court of Appeals decided the case. It is supervening events
since the decision of the Court of Appeals which have caused the dispute
between the majority and the dissent over whether this case is moot.
Therefore, all that the Court actually holds is that these supervening
events do not deprive this Court of the authority to hear the case.
I agree with that holding, and would go still further in the direction
of relaxing the test of mootness where the events giving rise to the
claim of mootness have occurred after our decision to grant certiorari
or to note probable jurisdiction.

The
Court implies in its opinion, and the dissent expressly states, that
the mootness doctrine is based upon Art. III of the Constitution.
There is no doubt that our recent cases have taken that position.
See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546 (1976);
Preiser v. Newkirk, supra, at 401; Sibron v. New York,
392 U.S. 40, 57 (1968); Liner v. Jafco, Inc., 375 U.S. 301,
306, n. 3 (1964). But it seems very doubtful that the earliest case
I have found discussing mootness, Mills v. Green, 159 U.S.
651 (1895), was premised on constitutional constraints; Justice Gray's
opinion in that case nowhere mentions Art. III.

If
it were indeed Art. III which--by reason of its requirement of a case
or controversy for the exercise of federal judicial power--underlies
the mootness doctrine, the "capable of repetition, yet evading
review" exception relied upon by the Court in this case would
be incomprehensible. Article III extends the judicial power of the
United States only to cases and controversies; it does not except
from this requirement other lawsuits which are "capable of repetition,
yet evading review." If our mootness doctrine were forced upon
us by the case or controversy requirement of Art. III itself, we would
have no more power to decide lawsuits which are "moot" but
which also raise questions which are capable of repetition but evading
review than we would to decide cases which are "moot" but
raise no such questions.

The
exception to mootness for cases which are "capable of repetition,
yet evading review," was first stated by this Court in Southern
Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911). There the Court
enunciated the exception in the light of obvious pragmatic considerations,
with no mention of Art. III as the principle underlying the mootness
doctrine:

"The
questions involved in the orders of the Interstate Commerce Commission
are usually continuing (as are manifestly those in the case at bar)
and their consideration ought not to be, as they might be, defeated,
by short-term orders, capable of repetition, yet evading review, and
at one time the Government and at another time the carriers have their
rights determined by the Commission without a chance of redress."
Id., at 515.

The
exception was explained again in Moore v. Ogilvie, 394 U.S.
814, 816 (1969):

"The
problem is therefore 'capable of repetition, yet evading review.'
The need for its resolution thus reflects a continuing controversy
in the federal-state area where our 'one man, one vote' decisions
have thrust" (citation omitted).

It
is also worth noting that Moore v. Ogilvie involved a question
which had been mooted by an election, just as did Mills v. Green
some 70 years earlier. But at the time of Mills, the case originally
enunciating the mootness doctrine, there was no thought of any exception
for cases which were "capable of repeition, yet evading review."

The
logical conclusion to be drawn from these cases, and from the historical
development of the principle of mootness, is that while an unwillingness
to decide moot cases may be connected to the case or controversy requirement
of Art. III, it is an attenuated connection that may be overridden
where there are strong reasons to override it. The "capable of
repetition, yet evading review" exception is an example. So too
is our refusal to dismiss as moot those cases in which the defendant
voluntarily ceases, at some advanced stage of the appellate proceedings,
whatever activity prompted the plaintiff to seek an injunction. See,
e.g., City of Mesquite v. Aladdin's Castle, Inc., 455 U.S.
283, 289, n. 10 (1982); United States v. W.T. Grant Co., 345
U.S. 629, 632 (1953).

I
believe that we should adopt an additional exception to our present
mootness doctrine for those cases where the events which render the
case moot have supervened since our grant of certiorari or noting
of probable jurisdiction in the case. Dissents from denial of certiorari
in this Court illustrate the proposition that the roughly 150 or 160
cases which we decide each year on the merits are less than the number
of cases warranting review by us if we are to remain, as Chief Justice
Taft said many years ago, "the last word on every important issue
under the Constitution and the statutes of the United States."
But these unique resources--the time spent preparing to decide the
case by reading briefs, hearing oral argument, and conferring--are
squandered in every case in which it becomes apparent after the decisional
process is underway that we may not reach the question presented.
To me the unique and valuable ability of this Court to decide a case--we
are, at present, the only Art. III court which can decide a federal
question in which a way as to bind all other courts--is a sufficient
reason either to abandon the doctrine of mootness altogether in cases
which this Court has decided to review, or at least to relax the doctrine
of mootness in such a manner as the dissent accuses the majority of
doing here. I would leave the mootness doctrine as established by
our cases in full force and effect when applied to the earlier stages
of a lawsuit, but I believe that once this Court has undertaken a
consideration of a case, an exception to that principle is just as
much warranted as where a case is "capable of repetition, yet
evading review."

Justice
Scalia, with whom Justice O'Connor joins, dissenting.

Without
expressing any views on the merits of this case, I respectfully dissent
because in my opinion we have no authority to decide it. I think the
controversy is moot.

I

The
Court correctly acknowledges that we have no power under Art. III
of the Constitution to adjudicate a case that no longer presents an
actual, ongoing dispute between the named parties. Ante, at 10, citing
Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546 (1976); Preiser
v. Newkirk, 422 U.S. 395, 401 (1975). Here, there is obviously
no present controversy between the parties, since both respondents
are no longer in school and therefore no longer subject to a unilateral
"change in placement." The Court concedes mootness with
respect to respondent John Doe, who is now too old to receive the
benefits of the Education of the Handicapped Act (EHA). Ante, at 11.
It concludes, however, that the case is not moot as to respondent
Jack Smith, who has two more years of eligibility but is no longer
in the public schools, because the controversy is "capable of
repetition, yet evading review." Ante, at 11-16.

Jurisdiction
on the basis that a dispute is "capable of repetition, yet evading
review" is limited to the "exceptional situatio[n],"
Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), where the following
two circumstances simultaneously occur: "'(1) the challenged
action [is] in its duration too short to be fully litigated prior
to its cessation or expiration, and (2) there [is] a reasonable expectation
that the same complaining party would be subjected to the same action
again.'" Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per
curiam), quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)
(per curiam). The second of these requirements is not met in this
case.

For
there to be a "reasonable expectation" that Smith will be
subjected to the same action again, that event must be a "demonstrated
probability." Murphy v. Hunt, supra, at 482, 483; Weinstein
v. Bradford, supra, at 149. I am surprised by the Court's contention,
fraught with potential for future mischief, that "reasonable
expectation" is satisfied by something less than "demonstrated
probability." Ante, at 11-12, n. 6. No one expects that to happen
which he does not think probable; and his expectation cannot be shown
to be reasonable unless the probability is demonstrated. Thus, as
the Court notes, our cases recite the two descriptions side by side
("a 'reasonable expectation' or a 'demonstrated probability,'"
Hunt, supra, at 482). The Court asserts, however, that these
standards are "described . . . in the disjunctive," ante,
at 11-12, n. 6--evidently believing that the conjunction "or"
has no accepted usage except a disjunctive one, i.e., "expressing
an alternative, contrast, or opposition," Webster's Third New
International Dictionary 651 (1981). In fact, however, the conjunction
is often used "to indicate . . . (3) the synonymous, equivalent,
or substitutive character of two words or phrases fell over a precipice
[or] cliff the off [or] far side lessen [or] abate; (4) correction
or greater exactness of phrasing or meaning these essays, [or] rather
rough sketches the present king had no children--[or] no legitimate
children. . . ." Id., at 1585. It is obvious that in saying "a
reasonable expectation or a demonstrated probability" we have
used the conjunction in one of the latter, or nondisjunctive, senses.
Otherwise (and according to the Court's exegesis), we would have been
saying that a controversy is sufficiently likely to recur if either
a certain degree of probability exists or a higher degree of probability
exists. That is rather like a statute giving the vote to persons who
are "18 or 21." A bare six years ago, the author of today's
opinion and one other member of the majority plainly understood "reasonable
expectation" and "demonstrated probability" to be synonymous.
Cf. Edgar v. MITE Corp., 457 U.S. 624, 662, and n. 11 (1982)
(Marshall, J., dissenting, joined by Brennan, J.) (using the two terms
here at issue interchangeably, and concluding that the case is moot
because "there is no DEMONSTRATED PROBABILITY that the State
will have occasion to prevent MITE from making a takeover offer for
some other corporation") (emphasis added).

The
prior holdings cited by the Court in a footnote, see ante, at 12,
n. 6, offer no support for the novel proposition that less than a
probability of recurrence is sufficient to avoid mootness. In Burlington
Northern R. Co. v. Maintenance of Way Employees, ____ U.S. ____,
____, n. 4 (1987), we found that the same railroad and union were
"reasonably likely" to find themselves in a recurring dispute
over the same issue. Similarly, in California Coastal Comm'n v.
Granite Rock Co., ____ U.S. ____, ____ (1987), we found it "likely"
that the plaintiff mining company would submit new plans which the
State would seek to subject to its coastal permit requirements. See
Webster's Third New International Dictionary 1310 (1981) (defining
"likely" as "of such a nature or so circumstanced as
to make something probable[] . . . seeming to justify belief or expectation[]
. . . in all probability"). In the cases involving exclusion
orders issued to prevent the press from attending criminal trials,
we found that "[i]t can reasonably be assumed" that a news
organization covering the area in which the defendant court sat will
again be subjected to that court's closure rules. Press-Enterprise
Co. v. Superior Court of Cal., Riverside County, ____ U.S. ____,
____ (1986); Globe Newspaper Co. v. Superior Court of Norfolk County,
457 U.S. 596, 603 (1982). In these and other cases, one may quarrel,
perhaps, with the accuracy of the Court's probability assessment;
but there is no doubt that assessment was regarded as necessary to
establish jurisdiction.

In
Roe v. Wade, 410 U.S. 113, 125 (1973), we found that the "human
gestation period is so short that the pregnancy will come to term
before the usual appellate process is complete," so that "pregnancy
litigation seldom will survive much beyond the trial stage, and appellate
review will be effectively denied." Roe, at least one other abortion
case, see Doe v. Bolton, 410 U.S. 179, 187 (1973), and some
of our election law decisions, see Rosario v. Rockefeller,
410 U.S. 752, 756, n. 5 (1973); Dunn v. Blumstein, 405 U.S.
330, 333, n. 2 (1972), differ from the body of our mootness jurisprudence
not in accepting less than a probability that the issue will recur,
in a manner evading review, between the same parties; but in dispensing
with the same-party requirement entirely, focusing instead upon the
great likelihood that the issue will recur between the defendant and
the other members of the public at large without ever reaching us.
Arguably those cases have been limited to their facts, or to the narrow
areas of abortion and election rights, by our more recent insistence
that, at least in the absence of a class action, the "capable
of repetition" doctrine applies only where "there [is] a
reasonable expectation that the SAME COMPLAINING PARTY would be subjected
to the same action again." Hunt, 455 U.S., at 482 (emphasis
added), quoting Weinstein, 423 U.S., at 149; see Burlington
Northern R. Co., supra, at ____, n. 4; Illinois Elections Bd.
v. Socialist Workers Party, 440 U.S. 173, 187 (1979). If those
earlier cases have not been so limited, however, the conditions for
their application do not in any event exist here. There is no extraordinary
improbability of the present issue's reaching us as a traditionally
live controversy. It would have done so in this very case if Smith
had not chosen to leave public school. In sum, on any analysis, the
proposition the Court asserts in the present case--that probability
need not be shown in order to establish the "same-party-recurrence"
exception to mootness--is a significant departure from settled law.

II

If
our established mode of analysis were followed, the conclusion that
a live controversy exists in the present case would require a demonstrated
probability that all of the following events will occur: (1) Smith
will return to public school; (2) he will be placed in an educational
setting that is unable to tolerate his dangerous behavior; (3) he
will again engage in dangerous behavior; and (4) local school officials
will again attempt unilaterally to change his placement and the state
defendants will fail to prevent such action. The Court spends considerable
time establishing that the last two of these events are likely to
recur, but relegates to a footnote its discussion of the first event,
upon which all others depend, and only briefly alludes to the second.
Neither the facts in the record, nor even the extra-record assurances
of counsel, establish a demonstrated probability of either of them.

With
respect to whether Smith will return to school, at oral argument Smith's
counsel forthrightly conceded that she "cannot represent whether
in fact either of these students will ask for further education from
the Petitioners." Tr. of Oral Arg. 23. Rather, she observed,
respondents would "look to [our decision in this case] to find
out what will happen after that." Id., at 23-24. When pressed,
the most counsel would say was that, in her view, the 20-year-old
Smith could seek to return to public school because he has not graduated,
he is handicapped, and he has a right to an education. Id., at 27.
I do not perceive the principle that would enable us to leap from
the proposition that Smith could reenter public school to the conclusion
that it is a demonstrated probability he will do so.

The
Court nevertheless concludes that "there is at the very least
a reasonable expectation" that Smith will return to school. Ante,
at 12, n. 6. I cannot possibly dispute that on the basis of the Court's
terminology. Once it is accepted that a "reasonable expectation"
can exist without a demonstrable probability that the event in question
will occur, the phrase has been deprived of all meaning, and the Court
can give it whatever application it wishes without fear of effective
contradiction. It is worth pointing out, however, how slim are the
reeds upon which this conclusion of "reasonable expectation"
(whatever that means) rests. The Court bases its determination on
three observations from the record and oral argument. First, it notes
that Smith has been pressing this lawsuit since 1980. It suffices
to observe that the equivalent argument can be made in every case
that remains active and pending; we have hitherto avoided equating
the existence of a case or controversy with the existence of a lawsuit.
Second, the Court observes that Smith has "as great a need of
a high school education and diploma as any of his peers." Ibid.
While this is undoubtedly good advice, it hardly establishes that
the 20-year-old Smith is likely to return to high school, much less
to public high school. Finally, the Court notes that counsel "advises
us that [Smith] is awaiting the outcome of this case to decide whether
to pursue his degree." Ibid. Not only do I not think this establishes
a current case or controversy, I think it a most conclusive indication
that no current case or controversy exists. We do not sit to broaden
decision-making options, but to adjudicate the lawfulness of acts
that have happened or, at most, are about to occur.

The
conclusion that the case is moot is reinforced, moreover, when one
considers that, even if Smith does return to public school, the controversy
will still not recur unless he is again placed in an educational setting
that is unable to tolerate his behavior. It seems to me not only not
demonstrably probable, but indeed quite unlikely, given what is now
known about Smith's behavioral problems, that local school authorities
would again place him in an educational setting that could not control
his dangerous conduct, causing a suspension that would replicate the
legal issues in this suit. The majority dismisses this further contingency
by noting that the school authorities have an obligation under the
EHA to provide an "appropriate" education in "the least
restrictive environment." Ante, at 14. This means, however, the
least restrictive environment appropriate for the particular child.
The Court observes that "the preparation of an [individualized
educational placement]" is "an inexact science at best,"
ante, at 14, thereby implying that the school authorities are likely
to get it wrong. Even accepting this assumption, which seems to me
contrary to the premises of the Act, I see no reason further to assume
that they will get it wrong by making the same mistake they did last
time--assigning Smith to too unrestrictive an environment, from which
he will thereafter be suspended--rather than by assigning him to too
restrictive an environment. The latter, which seems to me more likely
than the former (although both combined are much less likely than
a correct placement), might produce a lawsuit, but not a lawsuit involving
the issues that we have before us here.

III

The
Chief Justice joins the majority opinion on the ground, not that this
case is not moot, but that where the events giving rise to the mootness
have occurred after we have granted certiorari we may disregard them,
since mootness is only a prudential doctrine and not part of the "case
or controversy" requirement of Art. III. I do not see how that
can be. There is no more reason to intuit that mootness is merely
a prudential doctrine than to intuit that initial standing is. Both
doctrines have equivalently deep roots in the common-law understanding,
and hence the constitutional understanding of what makes a matter
appropriate for judicial disposition. See Flast v. Cohen, 392
U.S. 83, 95 (1968) (describing mootness and standing as various illustrations
of the requirement of "justiciability" in Art. III).

The
Chief Justice relies upon the fact that an 1895 case discussing mootness,
Mills v. Green, 159 U.S. 651 (1895), makes no mention of the
Constitution. But there is little doubt that the Court believed the
doctrine called into question the Court's power and not merely its
prudence, for (in an opinion by the same Justice who wrote Mills)
it had said two years earlier:

"[T]he
court is not EMPOWERED to decide moot questions or abstract propositions,
or to declare . . . principles or rules of law which cannot affect
the result as to the thing in issue in the case before it. No stipulation
of parties or counsel . . . can enlarge the POWER, or affect the duty,
of the court in this regard." California v. San Pablo & Tulare
R. Co., 149 U.S. 308, 314 (1893) (Gray, J.) (emphasis added).

If
it seems peculiar to the modern lawyer that our 19th century mootness
cases make no explicit mention of Art. III, that is a peculiarity
shared with our 19th century, and even our early 20th century, standing
cases. As late as 1919, in dismissing a suit for lack of standing
we said simply:

"Considerations
of propriety, as well as long-established practice, demand that we
refrain from passing upon the constitutionality of an act of Congress
unless obliged to do so in the proper performance of our judicial
function, when the question is raised by a party whose interests entitle
him to raise it." Blaire v. United States, 250 U.S. 273,
279 (1919).

See
also, e.g., Standard Stock Food Co. v. Wright, 225 U.S. 540,
550 (1912); Southern Ry. Co. v. King, 217 U.S. 524, 534 (1910);
Turpin v. Lemon, 187 U.S. 51, 60-61 (1902); Tyler v. Judges
of Court of Registration, 179 U.S. 405, 409 (1900). The same is
also true of our early cases dismissing actions lacking truly adverse
parties, that is, collusive actions. See, e.g., Cleveland v. Chamberlain,
1 Black 419, 425-426 (1862); Lord v. Veazie, 8 How. 251, 254-256
(1850). The explanation for this ellipsis is that the courts simply
chose to refer directly to the traditional, fundamental limitations
upon the powers of common-law courts, rather than referring to Art.
III which in turn adopts those limitations through terms ("The
judicial Power"; "Cases"; "Controversies")
that have virtually no meaning except by reference to that tradition.
The ultimate circularity, coming back in the end to tradition, is
evident in the statement by Justice Field:

"By
cases and controversies are intended the claims of litigants brought
before the courts for determination by such regular proceedings as
are established by law or custom for the protection or enforcement
of rights, or the prevention, redress, or punishment of wrongs. Whenever
the claim of a party under the constitution, laws, or treaties of
the United States takes such a form that the judicial power is capable
of acting upon it, then it has become a case." In re Pacific
R. Commn., 32 F. 241, 255 (CCND Cal. 1887).

"Docr.
Johnson moved to insert the words 'this Constitution and the' before
the word 'laws'

"Mr.
Madison doubted whether it was not going too far to extend the jurisdiction
of the Court generally to cases arising Under the Constitution, &
whether it ought not to be limited to cases of a Judiciary Nature.
The right of expounding the Constitution in cases not of this nature
ought not to be given to that Department.

"The
motion of Docr. Johnson was agreed to nem: con: it being generally
supposed that the jurisdiction given was constructively limited to
cases of a Judiciary nature--"

In
sum, I cannot believe that it is only our prudence, and nothing inherent
in the understood nature of "The judicial Power," U.S. Const.,
Art. III, 1, that restrains us from pronouncing judgment in a case
that the parties have settled, or a case involving a nonsurviving
claim where the plaintiff has died, or a case where the law has been
changed so that the basis of the dispute no longer exists, or a case
where conduct sought to be enjoined has ceased and will not recur.
Where the conduct has ceased for the time being but there is a demonstrated
probability that it will recur, a real-life controversy between parties
with a personal stake in the outcome continues to exist, and Art.
III is no more violated than it is violated by entertaining a declaratory
judgment action. But that is the limit of our power. I agree with
The Chief Justice to this extent: the "yet evading review"
portion of our "capable of repetition yet evading review"
test is prudential; whether or not that criterion is met, a justiciable
controversy exists. But the probability of recurrence between the
same parties is essential to our jurisdiction as a court, and it is
that deficiency which the case before us presents.

*
* * *

It
is assuredly frustrating to find that a jurisdictional impediment
prevents us from reaching the important merits issues that were the
reason for our agreeing to hear this case. But we cannot ignore such
impediments for purposes of our appellate review without simultaneously
affecting the principles that govern district courts in their assertion
or retention of original jurisdiction. We thus do substantial harm
to a governmental structure designed to restrict the courts to matters
that actually affect the litigants before them.